Public Bill Committee

[Frank Cook in the Chair]

Further written evidence to be reported to the House

CJ&I 379 David Skinner
CJ&I 381 Miss S F R Davies
CJ&I 382 David Kirkman
CJ&I 383 The Christian Institute
CJ&I 384 David Hanson MP
CJ&I 385 Colin McDougal
CJ&I 386 Alabastyr Glyttr
CJ&I 387 ACPO
CJ&I 388 The British Psychological Society
CJ&I 389 The Beaumont Trust
CJ&I 390 Reverend R M B West
CJ&I 391 Press for Change (PFC)
CJ&I 393 Miss S Jefford
CJ&I 394 Dr Beaumont
CJ&I 395 Local Government Association
CJ&I 396 Ministry of Justice
CJ&I 397 The Servite Sisters’ Charitable Trust
CJ&I 398 Information Commissioner

Clause 10

Abolition of suspended sentences for summary offences

Question proposed, That the clause stand part of the Bill.

David Burrowes: Welcome to the Chair, Mr. Cook. I welcome everyone back to the Committee. I have been away from its rigours having an operation on my hand, facing my own particular torture in trying to straighten my finger, so it is nice to be back facing a different sort of torture now. We shall see how we progress.
While I have been on the operating table at my fine local North Middlesex hospital, the Ministers have been drafting several amendments to keep us all busy, but has the Minister of State had the opportunity to look at the Prison Reform Trust leaflet, as I encouraged him to do as part of his recess reading? It goes through the sentencing process in detail and makes particular reference to policy developments. As I said at a previous sitting, we are especially concerned about the interference in sentencing jurisdiction and the discretion that has been circumvented by legislation, which has caused the judges’ concern that their hands were being tied. I drew attention to the florid, pejorative and perhaps unparliamentary comment by one judge, when he said how judges look so—expletive—
“silly in court, when we can’t sentence properly because some civil servant has second-guessed us.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 25 October 2007; c. 257.]
Clause 10 is very much in the realm of s. It restricts the use of suspended sentence orders to indictable and either way offences, and to remove suspended sentence jurisdiction when dealing with summary only offences. When giving evidence, concern was expressed by the Magistrates Association and the Police Federation, which opposed the clause. The Magistrates Association said that it
“can see no logical or good reason for this proposal”.
The Police Federation does not support the abolition of suspended sentences, and says that it supports the
“greater use of community sentences”,
and believes that
“suspended sentences provide magistrates with an additional sentencing incentive which can effectively act as a deterrent.”
It therefore recommends that the proposal to remove the option be reconsidered. I endorse the Police Federation’s view.
The Magistrates Association opposes the clause for two particular reasons. The obvious reason is that when dealing with a suspended sentence, one is dealing with an offence that has passed the custody threshold. As the Committee will be aware from the evidence sessions, the Government’s case is that research has shown that suspended sentence orders have been overused and have led to an increase in the prison population. However, in clause 10 and others, the Government are dealing in the wrong way with the problem of prisons being full to capacity. The Magistrates Association says that the jury is very much still out on the research, and questions whether it is sufficiently robust to show that suspended sentence orders have or will have a significant impact on the prison population. It makes the point that a suspended sentence order is imposed when the custody threshold has been reached.
Indeed, the Sentencing Guidelines Council makes it clear on page 24 of its guidance that a suspended sentence is a sentence of imprisonment, imposed when that threshold has been passed—when an offence is so serious that it merits a custodial sentence. The guidelines go on to give helpful recommendations on what magistrates and judges should do when they are dealing with such offences. They make the point that, in those cases,
“requirements can be imposed during the supervision period and the court can respond to breach by sending the offender to custody. The crucial difference is that the suspended sentence is a prison sentence and is appropriate only for an offence that passes the custody threshold and for which imprisonment is the only option.”
The relevant questions to ask, the guidance states, are
“(a) has the custody threshold been passed?
(b) if so, is it unavoidable that a custodial sentence be imposed?
(c) if so, can that sentence be suspended? (sentencers should be clear that they would have imposed a custodial sentence if the power to suspend had not been available)”.
That is the position we are in. The clause is designed not to allow the power to suspend to be available. That will lead any sentencer to deal with the three questions within the guidance. Has the custody threshold been passed? Yes. Is it unavoidable that a custodial sentence be imposed? Yes. If so, can that sentence be suspended? They would have to answer, because of this clause: no, the sentence cannot be suspended. So, inevitably, to be true to the guidance from the Sentencing Guidelines Council and the statutory provisions, they would have to send the defendant to prison. Therefore, the argument that the clause would lead to a reduction in the prison population is not properly made out.

Philip Hollobone: I do not have the privilege of being a practising lawyer, as my hon. Friend does, so my thoughts may be a lot more simple on these things, but surely it is screamingly obvious that the Government’s efforts will not achieve what they intend to achieve? The evidence given to the Committee on 16 October by the chief executive of the Magistrates Association could not be clearer. Cindy Barnett and Sally Dickinson themselves made it very clear that the measure will have no effect at all on custodial sentences and will actually ensure that more people go to prison who otherwise would have been kept out of it. At a time when the national prison population has never been higher, is this not simply the most unfortunate and almost crazy way for the Government to proceed?

David Burrowes: I could not put it better than my hon. Friend has. It is crazy. The Government may well think that we would say that, but surely, if the Magistrates Association and the Police Federation are saying that it does not make sense, the Government should listen and reconsider?

Frank Cook: Order. I sympathise with the time spent correcting one’s digits, but I think that in that time the hon. Gentleman may have forgotten that I am partially deaf and that I like arguments to be expressed clearly and through the Chair.

David Burrowes: I am grateful to you, Mr. Cook. As a solicitor, I should know that I should address the chairman of the magistrates. I would not want to get on the wrong side of the person judging.
Let us try to be charitable to the Government. Perhaps they will argue that the problem is that too many suspended sentence orders have been made with too rigorous requirements, which have been breached and have led to custodial sentences inevitably being imposed. But I again refer to the Sentencing Guidelines Council publication “New Sentences: Criminal Justice Act 2003”, which says on page 25 that
“Because of the very clear deterrent threat involved in a suspended sentence, the requirements imposed should generally be less onerous than those imposed as part of a community sentence. A court wishing to impose onerous or intensive requirements on an offender should reconsider its decision to suspend sentence and consider whether a community sentence might be more appropriate.”
We, therefore, have guidance already; we do not need additional legislation to try to circumvent magistrates or judges. They have the discretion to decide when more rigorous requirements of supervision are needed than could be dealt with by way of a community penalty.
The first problem with the clause is that when the custody threshold has been reached, a custodial sentence will follow without suspension. The other point made quite properly by the Magistrates Association is that the proposal seems to be one of the first to differentiate
“so radically in sentencing disposals between summary and either-way matters.”
That would lead to an anomaly, one that Cindy Barnett, the chairman of the Magistrates Association, referred to in an evidence-taking session. It occurs when one is dealing with a summary only case and an either way case. I will take the example of a defendant charged with joyriding or aggravated vehicle taking, which could be an either way case. However, this particular defendant ended up smashing his vehicle into another vehicle, resulting in damage worth less than £5,000—£4,999 to be exact. The case therefore had to be determined as a summary only, magistrates only case. The defendant also drove while disqualified and was driving under the influence of excess alcohol, at three times the limit. All of those factors together place him above the custody threshold; the offence is so serious as to merit custody.
At the same court on the same day, another joyrider appears, again charged with aggravated vehicle taking, driving while disqualified and driving under the influence of excess alcohol. That defendant was involved in smashing up his own vehicle and another vehicle, causing damage worth £5,000—£1 more than the other defendant at the same court caused. Under the proposed legislation, the latter case would be dealt with as an either way offence. The two cases would come before the same magistrates court and the magistrate would deal with those two defendants differently, but both cases exceed the custody threshold and a custodial sentence would be inevitable. However, let us suppose that the magistrate was also told that both defendants, for example, suffered from a terminal illness—that there were mitigating circumstances to merit the magistrate deciding to suspend the sentence.
In the case of the defendant who caused damage worth less than £5,000, the court would have its hands tied; it would be unable to suspend the sentence for that defendant. As the defendant was suffering from a terminal illness, a community penalty would not be suitable, so the court would be left with two options: a conditional discharge or a custodial sentence. Given the severity of the case, the court would be hard pushed not to impose a custodial sentence. In the case of the defendant who caused damage that amounted to £1 more in costs, under the proposals the court would have discretion to impose a suspended sentence. What an anomaly. The chairman of the Magistrates Association said of such cases:
“I think that the bench involved would follow the law absolutely in both cases in relation to sentencing, but would be very aware of the anomaly caused by the legislation. As a general rule, as has been said, we would prefer more rather than less discretion.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 37, Q78.]
The Minister must tell the Committee what evidence there is just justify for creating such an anomaly and disparity.
Continuing to deal with those two examples, the disparity is made worse if the joyriders had gone into a shop and stolen a Mars bar. The defendants would be charged with theft and their cases would be treated as either way offences. The magistrates would then have powers to suspend the sentence because an either way offence is included in the summary only offences. Nevertheless, that would be a convoluted way to sentence. The magistrates would have to rely upon the relatively less serious offence of theft of a Mars bar to put the defendant into the category of cases that can receive suspended sentences. That does not make sense, and the Government have not laid out evidence that they need to reduce the discretion of magistrates courts.
It is worth us spending some time on the clause because it is an example of many clauses that have not been properly thought through. Such clauses are a response to the Government’s concerns about prison overpopulation, but they seek to deal with the problem in the wrong way and in a way that has not properly taken account of or listened to the people in the field—practitioners, magistrates and police—who wish to persuade the Government not to follow a course of action for the sake of over-legislating. I therefore want the Committee to vote against the clause standing part.

David Heath: I welcome you to this little Committee of ours, Mr. Cook. The Criminal Justice and Immigration Bill is a delight to return to after our short break.
I hope that we will be able to make quick progress at times today, but we cannot allow clause 10 to pass without serious comment. I will echo some of the concerns expressed by the hon. Member for Enfield, Southgate. Initially, I welcomed the clause. At first sight, it seemed eminently sensible that the Government should wish to encourage the use of community sentencing and discourage the use of suspended custodial sentences in preference to community sentences. I understood where the Government were coming from. However, I do not accept the argument that we should restrict the discretion of the courts in order to meet the shortcomings of the prison estate. That seems to be entirely wrong, and I am concerned by the comments that the Lord Chief Justice expressed only last week on that front. It seems that we are increasingly limiting the discretion of the courts simply because of the Government’s inability to provide the necessary prison places. I have frequently expressed my own views on how we could get around that problem: rather than build more prisons, we should build other secure institutions to remove from prison those people who should not be there. However, that is a debate for another day.
Closer examination of the Government’s argument for the clause reveals that they cannot possibly achieve those objectives. That is why we are asking the Ministers to think again. I do not think that they have looked at their proposals’ consequences for what actually happens in a courtroom setting. I will return to the argument made by the hon. Member for Enfield, Southgate and refer to the advice that is given to magistrates. I would have hoped that the Ministers looked at that advice before embarking on this proposal.
As we know, responsibility for the training of magistrates and full and part-time judges in this country lies with the Judicial Studies Board. The Judicial Studies Board helpfully provides advice to magistrates in the form of the “Adult Court Bench Book”, which sets out in explicit terms how magistrates are to approach the difficult area of sentencing. The “Adult Court Bench Book”, which magistrates are required to have regard for in their decision making, first states how they are to assess the sentencing threshold, a point to which the hon. Gentleman referred. I refer the Minister to page 49—he may not have a copy about his person, so I shall read out the relevant part for his benefit. The heading is: “WHAT LEVEL OF SENTENCING ARE YOU CONSIDERING?” The subheading is: “Which sentencing threshold has been passed?” It then sets out the various levels that the magistrate is required to consider. The lowest sentence available is
“Absolute or conditional discharge—the offence does not merit the imposition of immediate punishment.”
The second tier is
“Fine—the offence merits an immediate punishment, but is not serious enough to warrant the restriction of liberty involved in a community sentence.”
The third tier is
“Community sentence—the offence is serious enough to warrant a restriction of liberty, but not so serious as to justify a custodial sentence.”
It is only at the fourth tier that we get to the point of a custodial sentence, if
“the offence is so serious that neither a fine alone nor a community sentence can be justified.”
Beyond that there is a further tier:
“Committal to the Crown Court for sentence”,
if the offence warrants a sentence that a magistrate would not have the power to impose.
At no point during that initial consideration does the magistrates bench consider whether a suspension of the sentence is or is not appropriate. It merely decides whether the severity of the offence merits a custodial sentence. It is only once that decision has been reached that the magistrate can make a second decision, on whether that custodial sentence could be suspended, served intermittently or shortened commensurate with the gravity of the offence.
It is possible that the Minister intends that alternative advice be given to magistrates on the hierarchy of offences, I do not know. However, in the absence of other clear advice, the consequence of clause 10 as it stands is that a magistrate can take a decision only on whether the gravity of the offence requires a custodial sentence; he or she does not then have the capacity or the discretion to say that that sentence should be suspended. Therefore, the automaticity of a custodial sentence becomes absolute. Far from reducing the number of offenders who are sent to prison, the clause would increase it. That is exactly the point made by the hon. Member for Enfield, Southgate, which I seek to amplify.
I think that the Minister has got the measure wrong—not intentionally; no one intends that to be the consequence, but the consequence will not be what is expected. Given the clear advice from the Magistrates Association, from practitioners and from everybody else who knows about the subject, it would be sensible of the Minister to think again. If the clause will not achieve what we want, perhaps it should be taken away and more work be done on it. In its current state, the clause will not achieve its objectives.

David Burrowes: Does the hon. Gentleman endorse the suggestion made by magistrates that the concern, if there is one, could be met not by removing their discretion, but by encouraging them to have training to apply existing legislation properly?

David Heath: I think that that is right. I always resile, where possible, from reducing the discretion of courts, because only a court hears the circumstances of an individual case. However, if there is a problem with the interpretation of the present rules, and the Minister has a genuine concern—and I am sure that he does—about that, it is a matter of returning to the Judicial Studies Board and recognising that the problem needs to be addressed with the magistrates benches. They need to understand that our intention is to use community sentencing more and suspended sentences less. Perhaps we need a rewriting of the entire hierarchy of consideration of sentencing.
That would be a radical step, but it is not impossible. What is impossible is to reconcile clause 10 with the current advice given to magistrates on sentencing and the outcome that the Minister hopes to achieve. For that reason, I shall join the Conservatives in voting against the clause, unless the Minister can assure us that he will take it away and rewrite it.

David Hanson: I welcome you to the Chair, Mr. Cook, for what I understand may be a temporary sojourn today. I hope that you enjoy our deliberations. Could I also welcome my hon. Friend—in this case—the Member for Enfield, Southgate on his return following his injury and operation over the short recess period between the end of the last session and the beginning of this one. I suppose that we are technically a year on from our last consideration of this matter.

Sadiq Khan: It certainly feels that way.

David Hanson: My hon. Friend the Member for Tooting has pinched my punchline.

Maria Eagle: Not for the first time.

David Hanson: No, not for the first time. I welcome all hon. Members back to the Committee for what I hope will be a productive and—dare I say it?—speedy sitting.
I fully recognise the points that have been made. Obviously, both the hon. Members for Enfield, Southgate and for Somerton and Frome have prayed in aid evidence that the Committee received before this line-by-line scrutiny stage. There are certainly points within that evidence that are worthy of reflection.
The clause, as hon. Members know, will remove the criminal courts’ power to impose a suspended sentence order for a summary only offence. It will not affect the power to impose immediate custody for those offences and the courts will still be able to impose suspended sentence orders for either way or indictable only offences, and, as was mentioned by the hon. Member for Enfield, Southgate, for a summary offence where it is sentenced together with an either way or indictable only offence.
We have given serious consideration to these matters. It is part of the Government’s drive to examine how we can achieve greater use of community sentences and I accept that that will have some impact upon the prison population. Both the hon. Members who have spoken so far have mentioned the prison population. They will know that, at the moment, there are just over 81,000 people in prison.

Edward Garnier: Eighty-one thousand five hundred.

David Hanson: Eighty-one thousand five hundred; that was a helpful intervention by the hon. and learned Member for Harborough. The maximum capacity for the prison population is approximately 82,000. I believe that we must examine how we can avoid custody for individuals, particularly where—I will argue this case—whether they go to prison is a marginal decision.
The use of suspended sentence orders has increased dramatically since their introduction in April 2005. Recently, more than 3,500 such orders per month have been given by the courts, of which about 40 per cent. are for summary only offences, which the clause deals with. Although sentencing trends show a small drop in sentencing of immediate custody, that is greatly exceeded by the increase in suspended sentences, which suggests that many of those sentenced to a suspended sentence order would previously have been sentenced to a non-custodial sentence. That is the point that I wish to make. I accept the points that were made earlier about the guidance that is given, but I contend that many of those who are now receiving suspended sentence orders would have received a community sentence before.
May I pray in aid Lord Phillips of Worth Matravers, the Lord Chief Justice? Only last week, on 15 November 2007, in a speech to the Howard League for Penal Reform, he said:
“The seriousness of the offence determines whether it crosses what is known as ‘the custody threshold’, but factors personal to the offender can justify the court in passing a non-custodial sentence even where the custodial threshold is crossed. In practice there is quite a wide border-line area where it is open to the court to choose between sending the offender to prison or dealing with him in some other way. This is particularly true in the case of Magistrates”.

Edward Garnier: I was there, listening to the Lord Chief Justice as he gave the Cripps lecture, sponsored by the Howard League for Penal Reform and Clifford Chance. It was a very thoughtful speech, ranging across quite a lot of issues relating to criminal justice policy and sentencing.
However, the point that the Minister of State must get to grips with is the one that was revealed during our evidence session, when Ellie Roy was giving evidence and she quoted the 40 per cent. figure. The Minister of State may remember that I asked Ellie Roy about that figure and specifically whether she had done any unpicking of that figure, to analyse why, in 40 per cent. of cases, magistrates were sentencing in the way that she described in our evidence session and the way that the Minister of State now describes. Repetition of the figure does not help us; we need analysis of the basis upon which that 40 per cent. figure is arrived at. I am not yet sure that the right hon. Gentleman has done that analysis.
May I finish by making another point? I appreciate that, as a recorder, I do not try summary offences unless they are sent up on an either way basis from the magistrates court, but I can assure the Minister of State that the power to give a suspended custodial sentence is one of the most valuable weapons at the disposal of a criminal justice system. If he removes it from the magistrates court he would do great damage to the ability of the courts to sentence appropriately. I urge him to think carefully about this aspect of the sentencing regime before he resists the Opposition’s arguments.

David Hanson: I am, as ever, grateful for the hon. and learned Gentleman’s intervention. It goes to the heart of the potential difference between us. I believe that he and his hon. Friend the Member for Enfield, Southgate wish to see greater use of community sentences and people avoiding custody. My judgment, and that of the Lord Chancellor and his predecessor my noble Friend Lord Falconer, is that this will result not in up-tariffing to custody but in down-tariffing to more community sentences. That is the heart of the disagreement between us on this.
That is a judgment that we have made and it is a judgment that will ultimately be examined by the test of time. But that judgment is one that we have come to. I believe it will result in stronger use of community sentences rather than going to automatic custody for the reasons Lord Phillips laid out in his lecture last week. There is an element of discretion for those sentences which allows a judgment to be made which, based on the exercise of the cases we have looked at to date, will result in down-tariffing to community sentences rather than custody.

David Burrowes: Did not the Lord Chief Justice make the case not for new legislation in this regard, but for properly applying existing guidance and not to remove the discretion of the judiciary and magistrates in any way? So if there is a concern by all to down-tariff, it can be dealt with properly through the guidance to which we have already referred today rather than by removing another power or string from the bow. Finally, is there not a concern that the National Association of Probation Officers estimates that the abolition of the suspended sentence for summary offences may increase the prison population by 1,000?

David Hanson: Again, this is a matter of judgment. This is our judgment and there is a different judgment based on different experiences. I am simply telling the Committee that the judgment of the two Lord Chancellors who have looked at this since May and my judgment as the Minister is that it will result in greater use of community sentences rather than prison places. We expect that if we do not remove the clause the trend will, over the next two years, lead to potentially an extra 400 prison places being used by people who are on suspended sentence orders under the existing legislation.

Edward Garnier: Four hundred?

David Hanson: Four hundred. I am not sure that that is a useful use of prison resources. I will happily give way to the hon. Gentleman.

David Heath: The Minister must take my assurance and that of others that we agree with him on this. There is an argument for greater use of community sentencing as opposed to suspended sentences. But that is not the consequence of the clause. Would the Minister address the issue of the advice that is given to magistrates and the hierarchy within sentencing procedure? Unless he addresses that he cannot possibly achieve the objective that he and I share.

David Hanson: I am grateful that the hon. Gentleman shares the objective because in the debate on the Queen’s Speech Lord Dholakia, who I understand is deputy leader of the Liberal Democrats in the House of Lords, said:
“I welcome a number of measures in the Bill”—
the Criminal Justice and Immigration Bill.
“Also welcome is the removal of the power to pass suspended sentences for offences which are triable only summarily. This change should help to reduce the negative effect on the prison population of activated suspended sentences passed on offenders who could perfectly well receive a community sentence instead.”—[Official Report, House of Lords, 12 November 2007; Vol. 696, c. 274.]
That was said by the deputy leader of the Liberal Democrats in the House of Lords in a discussion on the Bill, supporting the contention that I proposed today.

Edward Garnier: Let us not worry about the Liberal Democrats but concern ourselves with the law that we are making. Liberal Democrat and Conservative members of the Committee are at one in being puzzled by the Government’s arguments. Is the Minister of State aware that in the Crown court if someone is given a custodial sentence, conditions can be added to it that are akin to a community punishment. My hon. Friend the Member for Enfield, Southgate will tell me if it applies in magistrates courts, too.
There is nothing to be gained from the Minister’s clause. He can have everything he wants—that is to say, the greater use of community punishments—by leaving things as they are and leaving discretion with the sentencer. Restricting the sentencer’s discretion makes the chances of reoffending because of some Whitehall, Government-imposed system all the more likely. I urge the Minister to think very carefully before we go too far and he damages something that we all want to protect.

David Hanson: Again, I am grateful for the hon. and learned Gentleman’s intervention. There is an honest disagreement between us. I believe that the clause will lead to a greater use of community sentences. The hon. and learned Gentleman and his hon. Friends and, apparently, the hon. Member for Somerton and Frome and his noble Friend take a different view—[Hon. Members: “Irrelevant.”] It is not irrelevant; it is part of the debate. If those who speak on behalf of the Opposition parties in one House say that they support a proposal and those in the other House say that they do not, I must explore the difference in the Opposition’s thoughts.
The clause is an appropriate way forward. It will reduce the number of prison places, potentially by up to 400 over the next two years, and lead to a greater use of community sentences. I am supported in that declaration by Lord Phillips and by the National Association for the Care and Resettlement of Offenders and other bodies.

Nick Hurd: Unlike most participants in the debate I am not a lawyer. For me and, I suspect, for many of my constituents, the most credible voice in the debate is that of the Magistrates Association, the people on the front line who will have to implement this stuff. Its voice could not have been clearer. The chief executive said:
“A suspended sentence order is a custodial sentence—we cannot get away from that.”—[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 43, Q75.]
In direct response to a question from my hon. and learned Friend the Member for Harborough, the chairman of the association said that there is an argument for saying that the number of people being sent to prison will increase as a result of the clause. Why are they wrong?

David Hanson: I listened carefully to what the Magistrates Association said in evidence to the Committee on 16 October, but I have to make a judgment and my judgment is that the clause will affect low level, summary only cases, which can be dealt with by a community sentence rather than by immediate custody through suspended sentence orders, which will happen in due course. That is a judgment between the Magistrates Association and myself, the Lord Chancellor, the previous Lord Chancellor, NACRO and others, including other hon. Members, not just members of my party.

Philip Hollobone: With respect, the Minister is not addressing the point made by my hon. Friend the Member for Ruislip-Northwood. When my constituents in Kettering ask me which way I voted on suspended sentences, I will have to say that I do not know how I can translate the Minister’s words into a sensible, coherent answer. If an offender is before a magistrate and the offence is such that the magistrate feels that that person should go to prison but now has the right to suspend that sentence and the Minister is saying, “No, the offence is not as serious as the magistrate thinks therefore he should have a community sentence,” how will I justify that to my constituents?

David Hanson: I can tell the hon. Gentleman that we will have to look at giving advice to the Sentencing Guidelines Council and discuss forensically giving advice to magistrates. My wish is to ensure that we have strong community sentences to avoid people going to prison, because I am interested—again, it is a judgment—in preventing reoffending.
In respect of the offences that are considered under the current provisions, some 400 people will potentially go to prison in the next two years who could have been more strongly prevented from reoffending by receiving a community sentence. In such cases, individuals will go to prison for a short period, potentially with all the difficulties that that short sentence brings, despite all the evidence showing that short sentences cause great difficulties in respect of re-employment, housing and a range of other issues. The measure under discussion, as well as having the bonus for the Government of providing additional spare prison places, will be a greater contributory factor in preventing reoffending.
I understand what the magistrates have said. I could debate this matter for many months and moons to come. However, I share the view of Paul Cavadino, the chief executive of NACRO, who said:
“We welcome a number of the Bill’s provisions including the extension of conditional cautions to younger offenders, the reduction of periods served by recalled prisoners and the restriction of suspended sentences. Suspended sentences can have a ‘boomerang’ effect which has the perverse result of increasing the prison population. Courts often misuse suspended sentences by giving them to offenders who would otherwise have received community penalties.”
We will need to consider and discuss matters with the Sentencing Guidelines Council, which will advise magistrates accordingly. I commend the clause as it is drafted to the Committee.

Philip Hollobone: Surely, alleged misuse of suspended sentencing orders is different from abolishing the right to have such orders overall.

David Hanson: Again, there is a judgment to be made. I return to the figures: 3,500 orders per month have been given by the courts, 40 per cent. of which were for summary only offences. In respect of certain offences, which I can mention if the Committee wishes, the increased number of suspended sentence orders directly correlates with the reduction in community sentence orders given. That means that there is a greater opportunity for people to go to prison, which is not good for the prevention of reoffending in such cases.

Edward Garnier: There is no meeting of minds on whether it is a good idea to do what clause 10 asks us to do. I hope that the other place considers this matter carefully and robustly.
Under the current regime, people may end up in prison because magistrates are giving the wrong sort of person a suspended sentence that they breach and, therefore, have to serve a custodial sentence, possibly with a new sentence for a second offence to run concurrently. However, that issue relates to training and pre-sentence reports and working out whether a defendant will appropriately be dealt with by a suspended sentence order; it does not undermine the good arguments and experience of those of us who practice in the criminal courts as sentencers, which say that the suspended sentence option is hugely important and vital.
I doubt whether the provision will leave the Minister, as he hopes, with 400 additional prison spaces. The Government’s calculations on prison spaces over the past few years have not been brilliant. I will not prolong the argument—we have reached an impasse—but I urge the Minister and the Ministry of Justice, between now and Report and between the Bill leaving the House of Commons and going to the other place, to think again, otherwise we are just going to pass another bad law.

David Hanson: Again, I am grateful for the way in which the hon. and learned Member for Harborough has approached this matter. I am always happy to consider issues and to monitor progress during the passage of legislation through both Houses of Parliament. However, I return to the key point that the Sentencing Guidelines Council made in its May newsletter, before these proposals were advanced. It states:
“The number of suspended sentences rose steadily between 2004 and 2005; provisional figures for 2006 show a much more rapid increase. The information available to the Council and the Panel appears to indicate that this increase has been accompanied more by a reduction in the number of community orders and fines than in the number of custodial sentences”.

Edward Garnier: The assertion that the Minister of State makes is no doubt correct. The use of suspended sentences has gone up, and he must ask himself why that is. The fashion in sentencing has changed. The guidelines from the Court of Appeal Criminal Division and the position of the Sentencing Guidelines Council have changed, although I cannot remember whether that happened by 2000.
In the 1990s, it was much more difficult to give a suspended sentence, as the criteria were much stricter. However, they were made more liberal and so the sentences were used more. Now the Government say that that is wrong, particularly on the summary jurisdictions. We are yo-yoing around. I repeat that my experience sitting as a judge for over 10 years is that the suspended sentence is a very useful weapon.

David Hanson: I fear that we have reached an impasse, as the hon. and learned Gentleman suggested. In my judgment, the clause would be a valuable addition in supporting community sentences, reducing levels of custody and preventing reoffending. I am always happy to examine these matters and to look at training issues, but I commend the clause to the Committee.

David Heath: The Minister of State is an extraordinarily difficult person to agree with because the more one tries to agree with him, the more he tries to introduce entirely spurious arguments. We experienced that on the last day of the Committee before Prorogation and we are experiencing it again now. He is trying to play silly political games rather than concentrate on the issues. He adduced the comments of my noble Friend Lord Dholakia. Why on earth did he do that when he could have quoted me?
I addressed this issue on Second Reading, when I welcomed the principle behind clause 10. I said that
“it seems quite wrong that suspended sentences are used in the magistrates courts as a substitute for immediate sentences of a different kind, which was certainly not the Government’s intention.”—[Official Report, 8 October 2007; Vol. 464, c. 88.]
I try to agree with the Government, but they will not accept it. That is an extraordinary position to take, but—and it is a big but—on examining clause 10 in more detail in conjunction with the rules that magistrates are required to follow, it appears that it will have a perverse effect. Instead of addressing that problem, the Minister chose to ignore it. He repeats time and time again what his intention is, rather than what the consequence of the clause will be. That is my problem with him.
I say to the Minister squarely that he needs to address, through the Judicial Studies Board or the Sentencing Guidelines Council, what will happen as a consequence of the clause. If he gets that right he can achieve his intentions and my intentions. If he gets it wrong, it will have the opposite effect. Surely that is not what he wants to happen as a result of this legislation.

David Hanson: I am grateful for the hon. Gentleman’s support, and I am sorry if I raised his temperature. In the course of the discussion, I simply quoted his noble Friend in the Lords in support of the Government proposal. I am happy to have his support too and look forward to it in the vote. I will happily look at some of the issues to do with delivery. I have already indicated that we will discuss advice that could be given by the Sentencing Guidelines Council to clarify the issues for magistrates. The hon. Gentleman should go with his gut instincts on Second Reading and support the Government in Committee.

David Heath: Had the Minister approached the debate in a rather different way, I might have been inclined to accept that advice. Everything that he has said up until this moment has suggested that there is no problem to address, but there is. We have Committees to ask Ministers to look at measures again when their intentions will not be translated into adequate legislation. That is my purpose in this Committee. That does not mean that I have changed my mind or that I have a great disagreement with my noble Friend in the Lords. It does not mean any of those things. It simply means that I am trying to achieve good legislation for our courts. The Minister has something different thing in mind, which is simply getting his Bill through unamended. That is not a sensible way of doing things.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 10, Noes 6.

Question accordingly agreed to.

Clause 10 ordered to stand part of the Bill.

Frank Cook: I must now offer the Committee a gentle expression of regret. Some time ago I received a request that Members be allowed to remove their upper, outer garments, but I wanted to get the first item out of the way before addressing it. I am happy to continue the practice that apparently was in place before I was brought on as a substitute.

Clause 11

Restriction on imposing community sentences

David Hanson: I beg to move amendment No. 20, in clause 11, page 8, line 24, leave out second ‘community’ and insert ‘rehabilitation’.

Frank Cook: With this it will be convenient to discuss Government amendment No. 57.

David Hanson: Before speaking to the Government amendments, may I tell Committee members that, in the spirit of co-operation, during the course of our proceedings I will reflect on other amendments and consider them further? I hope that that reassures the hon. Member for Somerton and Frome and the official Opposition that I am willing to look at the issues that they raised. Indeed, that may become clear during our discussions later today.
Government amendment No. 20 corrects a minor drafting error in clause 11, which makes reference to the old-style youth community orders rather than the new youth rehabilitation order. The effect of the amendment is simple and will make it clearer to sentencers that the court is not required to make a youth rehabilitation order, even when it is open to the court to do so.

David Burrowes: I do not take issue with the technical amendment, but perhaps I could take the opportunity to make a comment in more of a stand part mode. The Magistrates Association’s is concerned that clause 11 is repetitious and unnecessary. That theme developed in our debate on clause 10. Clause 11 makes the point that sentencers do not need to impose a community sentence when the community threshold has been reached, but magistrates and the judiciary are already aware of that, day in, day out, in the courts. If they wanted a reminder, they could look at the “Adult Court Bench Book”, or they could refer to the Sentencing Guidelines Council, which states:
“Sentencers must consider all of the disposals available at the time of sentence...before reaching the provisional decision to make a community sentence, so that, even where the threshold for a community sentence has been passed, a financial penalty or discharge may still be an appropriate penalty. Where an offender has a low risk of re-offending, particular care needs to be taken in the light of evidence that indicates that there are circumstances where inappropriate intervention will increase the risk of re-offending rather than decrease it.”
In addition, the point is made that enforcement of financial penalties make them a more viable sentence in a wider range of cases. Guidance and discretion are already available for the magistrates not to impose a community sentence, even if the threshold is reached, when there are particular mitigating circumstances, so why is it necessary for the Government to seek to spell matters out in additional legislation?

David Hanson: I am happy, if you give your consent, Mr. Cook, to speak to address the points that have been raised, or I can cover them in the clause stand part debate.

Frank Cook: Discussing a stand part issue now means that we will not discuss it later. I am aware of the fact that we are discussing Government amendment No. 20, but stand part is included.

David Hanson: I am grateful, Mr. Cook, for that clarification. I do not wish to widen the debate too much beyond Government amendment Nos. 20 and 57, which I hope are accepted as simple matters.
Once again, this is a matter of judgment. I accept that there is an element of common practice, as the hon. Member for Enfield, Southgate mentioned. We are keen to examine how we can put new energy into the issuing of fines, which we want to use as an alternative to some forms of community sentence. The purpose of clause 11 is to revitalise the fine, making it central to the process of redirecting probation resources where they are most needed, in particular using those resources to deal with more serious offenders. Many offenders can be adequately punished by a fine; in fact, for some offenders a fine is more of a punishment than a community sentence or another sentence.
The payment of fines now is significantly higher than it was before. Performance in the collection of fines has improved—it is more than 90 per cent—so sentencers can be confident that a fine is an effective punishment. It will be collected, and, in certain circumstances, it will be more effective than other types of punishment. We must face the reality that resources are scarce. I want probation resources to be used effectively, and if we can encourage the greater use of fines, that will help us to achieve our twin objectives. It will reduce the demands on probation resources and, at the same time, the magistrate’s ability to impose a fine will result in a more effective punishment for many individuals.
I accept that the greater use of fines is already evident. We are restating the principle, encouraging it and trying to give greater drive to it in clause 11. I commend clause 11 and Government amendments Nos. 20 and 57 to the Committee.

Amendment agreed to.

Clause 11, as amended, ordered to stand part of the Bill.

Clause 12

Indeterminate sentences: determination of tariffs

David Heath: I beg to move amendment No. 137, in clause 12, page 8, line 34, after ‘below,’, insert
‘if the offender is over the age of 18 years,’.
Clause 12 deals with changes in the procedures for indeterminate sentences and for determining the tariff. My amendment was suggested by the Standing Committee for Youth Justice to limit changes to the determination of tariff to individuals over 18. That would mean, of course, that people below that age would be subject to the current arrangements. This issue is part of the larger question of whether we deal with all offenders, whatever their age, in the same way. It has been a long-standing principle in our legal system that we treat children differently from adults, and indeed we are party to various international obligations to treat children and young people differently from adults.
There is, however, a particular problem with indeterminate sentences. Children and young people are different from adults. First, there are developmental changes— children grow up while in custody and may be very different people within a relatively short period of time. Secondly, a young person’s perception of their future will differ from that of somebody who has been in and out of the prison system, is of more mature years and can take a more phlegmatic view of things.
There is a long established legal principle, set out in R v. Storey 1984, that when a child is given a sentence of long-term detention they should serve a period of time that enables them to see
“light at the end of the tunnel: the sentencer should take care to select a duration on which the offender can fix his eye with a view to emerging in the foreseeable future.”
There is a requirement, too, under article 37(b) of the United Nations convention on the rights of the child, which states:
“No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.
It is that last phrase which is the operative term.
I shall not press the amendment to a Division, as it is simply intended to probe the Minister’s views on the matter, but tariffs for indeterminate sentences imposed on a child should be no longer than what would be served under a determinate custodial penalty for the same offence. Given what I said about children’s development and the process of maturity, there may be a strong case for reviewing the threat that the young person poses to society at an earlier stage. There is no risk involved, if risk assessments are done properly and the Parole Board does its work when the young person is eligible for release, in reducing the sentence available to a limited period, because at that point there is an assessment of whether the young person represents a threat to society. If they do, they will not be released. That seems entirely right.
My argument is very simple. We recognise that the judicial system should treat young people differently from adults. There is an argument for a clear and determinate length of sentence for young people that should be commensurate with the offence, rather than an indeterminate sentence of the sort envisaged under the clause. I should be grateful for the Minister’s comments.

Edward Garnier: Not so very long ago, I was going through the front door of Oakhill secure training centre in Milton Keynes as the Minister was coming out, accompanied by his colleague the Minister for Children, Young People and Families. They had gone to look at the provision of custodial services for 15, 16 and 17-year-olds in that establishment, which is run by a private company. There were a number of people in the centre with indeterminate sentences. They had committed very serious crimes—some had been found guilty of murder.
The way in which we deal with youngsters who commit very serious crimes is not something that we can simply brush under the carpet and put out of mind. It is extremely important that the way in which we sentence people who are, at law, minors should have a number of aims in view. I suspect that we need to have those aims in view when we are sentencing adults as well. Punishment and public reassurance are clearly vital. The possibility of redemption as a young person matures is greater than it might be for an old lag of my age. The amendment provides an opportunity to ask the Government what their policy is with regard to the imprisonment of children, including those who have committed very serious crimes.
On my short visit to Oakhill STC, I found that its regime was humane and much improved from what it was perhaps two years ago, when it went through a period of difficulty. I do not know what the experience of the Minister and his colleagues was. I should have mentioned that the hon. Member for Milton Keynes, South-West (Dr. Starkey) was also there, as that establishment is in her constituency. I had a brief conversation with her before she left to attend to her other tasks.
We must be careful that we do not lump children or under-18s in with the rest of the criminal population. When children are detained during Her Majesty’s pleasure—I think that that is the frequently used expression—we should keep an eye out for education and rehabilitation, so that when that those children have served sufficient time for their punishment, they can be returned to society without the threat of being attacked or set upon by vigilantes, and without the concern that many of us have that they will reoffend if they have not been properly educated, reformed and rehabilitated. We should be able to stand up and say that when a young criminal is released, he or she will be a positive addition to society, not a drag on it or a further cause of problems. I suspect that the Minister, having been to Oakhill and, no doubt, other STCs, will largely agree with what I am saying. I congratulate the hon. Member for Somerton and Frome on raising the issue, albeit a difficult one to grasp.

David Hanson: I shall try to answer this short debate positively. I have some sympathy with the amendment tabled by the hon. Member for Somerton and Frome, and I hope that that shows that it is not all confrontation and disagreement among Committee members, and that there are occasions when we can reflect in a productive way on amendments that are tabled.
I recognise that there is precedent for a measure of the type suggested by the hon. Gentleman. Indeed, the murder tariff was debated in the context of the Bill that became the Criminal Justice Act 2003, and after consideration during the passage of that Bill, the Government reduced the starting point for juveniles convicted of murder. I have said that I have some sympathy with the amendment, but I ask the hon. Gentleman not to press it to a Division—I think that he has indicated that he will not. I ask him to withdraw the amendment and I will examine the issues in detail before we return to the matter following the end of the Committee’s consideration of this Bill.
I have little, if any, disagreement with the comments made by the hon. and learned Member for Harborough. Unfortunately, I did not see him when we exited Oakhill STC very rapidly. My right hon. Friend the Minister for Children, Young People and Families and I had to dash for a train so that we could return to London urgently for a further meeting. Had that not been the case, I would have happily had the hon. and learned Gentleman accompany me at Oakhill to look at the work going on there.
The hon. and learned Gentleman makes a valid point. I am not proud of the fact that when I woke up this morning, nearly 4,000 young people were in custody in secure training centres and other establishments. That is a failure of the system. We need to do several things, not least ensuring that when those individuals leave our care they are better individuals than when they came in. That means that we need to look at education—literacy and numeracy—at the difficulties in dealing with drug and alcohol problems, and at interventions outside establishments, with families and others. We must look at training and at skill levels and development, and we must consider housing and employment when individuals leave custody.
I know that the four Opposition Front Benchers and I have a common cause. The hon. and learned Member for Harborough and the hon. Member for Enfield, Southgate take a positive view on this. I know that the hon. Member for Ruislip-Northwood is interested in the Blue Sky project in his constituency, which promotes positive investment in individuals, and I know that the hon. Member for Somerton and Frome shares that aspiration. There is work to be done, and I hope that we can reach some form of cross-party consensus on what should be done to make secure training centres efficient and effective. It is not just a matter of detention and punishment, although it does involve that. It is also about rehabilitation, preventing reoffending, and ensuring that people leave those centres in a more positive way.
I say to the hon. and learned Member for Harborough that there is work to be done at Oakhill to raise standards still further, and the reason for our visit was to look at how we can do that. We all have that objective. In giving sympathy and consideration to the amendment, I hope that both in Committee and elsewhere we can look at how to make the operation of STCs more effective.
Finally, the reason why the Minister for Children, Young People and Families and myself were there was because since the new Prime Minister, my right hon. Friend the Member for Kirkcaldy and Cowdenbeath (Mr. Brown), took office, he ensured that the Youth Justice Board was not the sole responsibility of the Ministry of Justice, but that of the Department for Children, Schools and Families, too. The purpose of that is to better integrate work in education and training, and outside-establishment interventions, and to ensure that we do exactly what the hon. and learned Member for Harborough says: make the experience more positive for those going through the system. Hopefully, in doing so, we can reduce the awful reoffending rate for those coming out of an STC, which is at about 75 per cent. That is not satisfactory to anybody. I hope that the hon. Member for Somerton and Frome will withdraw his amendment and that my comments have helped to restore balance to the debate and to the Committee’s temper.

David Heath: That is more like it. That is the way a Committee is supposed to work. I am grateful to the hon. and learned Member for Harborough for his support, and to the Minister for his response.
The Minister says that he is not proud of the number of young people who are incarcerated in this country. I would go further: we should all be heartily ashamed of the fact that we imprison more of our young people than any other comparable country. That is a scar on the nation’s conscience. If we can address that—I take what the Minister said about the matter entirely at face value—we will be doing something hugely worth while for society.
I am grateful to the Minister for agreeing to look again at the amendment. As I said, it was not my intention to divide the Committee irrespective of what he said—unless he really provoked me. The key point is that children and young people are different. There should not be an automaticity by which the approach to adults applies to younger people in the same way. Whenever we do anything within the judicial and penal system, we must look carefully at whether that is appropriate to the needs of young offenders, and whether it will encourage them not to reoffend, but to grow, mature and become responsible members of society. That should be our clear intention. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Frank Cook: With this it will be convenient to discuss the following: New clause 4—Indeterminate sentences: determination of tariffs —
‘(1) Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (determination of tariffs in cases where the sentence is not fixed by law) is amended as follows.
(2) For subsections (2) to (4A) substitute—
“(1A) The court shall have a complete discretion to set the minimum period to be served in custody by an offender subject to a discretionary life sentence for public protection.
(1B) In setting that period the court must take into account—
(a) the seriousness of the offence,
(b) the danger to the public represented by the offender,
(c) the impact of the offence on the victim, his family and the local community where the offence took place,
(d) the offender’s previous criminal record,
(e) the need for rehabilitation of the offender, and
(f) any other factor the court considers relevant.”.’.

Edward Garnier: The previous debate touches upon the one that we are about to have, albeit that we are now dealing with the mechanics by which a court will consider the minimum tariff that a person sentenced to an indeterminate life sentence should be given.
I ask the Committee first to open up the amendment paper at new clause 4 on page 397 and compare it with the wording of clause 12, which is gobbledegook. It is possible to understand what clause 12 intends to achieve, but it takes some little while to do so and not all of us have that some little while, particularly when we are busy dealing with someone in court. I push forward a plea for simplicity in English before we make such decisions.
The hon. and learned Member for Medway (Mr. Marshall-Andrews) made a similar point during the Queen’s Speech debate, and I agreed with him. Clause 12 is not quite impenetrable, but it is getting close. We therefore thought that it would be better to invite the Government to adopt new clause 4. It is instructive to compare the two measures. The new clause states that
“Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000...is amended as follows.”
So far, so good.
Subsection (2) states:
“For subsections (2) to (4A) substitute—
‘(1A) The court shall have a complete discretion to set the minimum period to be served in custody by an offender subject to a discretionary life sentence for public protection.’”
As a matter of philosophy and sentencing practice, it is preferable for a court to have discretion. The adjective “complete” is perhaps unnecessary, but I submit that, giving the court discretion in relation to the appropriate sentence for the case, the defendant and the circumstances bit, is vital.
Several offences nowadays carry with them a life sentence. Some are discretionary life sentences, in that it is possible to give a determinate sentence with a limit. The same crime can be the subject of an indeterminate or life sentence. Clearly, an offence such as murder has a sentence prescribed by law, and that is life. However, the amount of time to be served by the defendant is not always the natural life of the defendant. The court has therefore to go through the exercise of working out the minimum that the defendant should serve before he is considered for release on licence by the Parole Board.
Clause 12(2) states:
“In subsection (3) (determination of the appropriate part of the sentence) at the end insert—
‘In Case A or Case B below, this subsection has effect subject to, and in accordance with, subsection (3C) below.’”
We understand what that means in English, but subsection (3) states:
“After subsection (3) insert—
‘(3A) Case A is where the court is of the opinion that the seriousness of the offence, or the combination of the offence and one or more other offences associated with it,—
(a) is exceptional (but not such that the court proposes to make an order under subsection (4) below)’”—
I interpose to suggest that the Government seem to be saying that the offences are exceptional, but not exceptionally exceptional. The subsection continues:
“(b) would not be adequately reflected by the period which the court would otherwise specify under subsection (2) above.”
So we go back upstairs and look at subsection (2). Having done that, let us now move on to new subsection (3B), which states:
“Case B is where the court is of the opinion that the period which it would otherwise specify under subsection (2) above would have little or no effect on time spent in custody, taking into account all the circumstances of the particular offender.”
I hope that you are still with me, Mr. Cook. I will now whizz on to new subsection (3C), which states:
“In Case A or Case B above, in deciding the effect which the comparison required by subsection (3)(c) above is to have on reducing the period which the court determines for the purposes of subsection (3)(a) (and before giving effect to subsection (3)(b) above), the court may, instead of reducing that period by one-half,—
(a) in Case A above, reduce it by such lesser amount (including nil) as the court may consider appropriate according to the seriousness of the offence, or
(b) in Case B above, reduce it by such lesser amount (but not by less than one-third) as the court may consider appropriate in the circumstances.
Then subsection (4) states:
“In subsection (4A) (no order to be made under subsection (4) in the case of certain sentences) after “No order under subsection (4) above may be made” insert “, and Case A above does not apply,”.
There we are. What a fuss I am making about nothing. That is clear as mud, and any sentencer who is faced with this sort of serious crime requiring the application of an indeterminate sentence, has only to look at that and go through the rubric and it is easy for him to decide what to do.
With some diffidence, I will address new clause 4 and see if it meets the problem that the Government think exists. It states:
“(1A) The court shall have a complete discretion to set the minimum period to be served as custody by an offender subject to a discretionary life sentence for public protection.”
Let me start by saying that if you want to change the wording, Mr. Cook, go ahead. All that I ask for is clarity. The following refers to the minimum period to be served in custody:
“(1B) In setting that period the court must take into account—
(a) the seriousness of the offence,
(b) the danger to the public represented by the offender,
(c) the impact of events on the victim, his family and the local community where the offence took place,
(d) the offender’s previous criminal record,
(e) the need for rehabilitation of the offender, and
(f) any other factor that the court considers relevant.”
I accept that that is a bit of a sweep up. I agree that I wrote that and, therefore, I think that it is marvellous in every particular, but I also suggest that you, Mr. Cook, probably found it a little easier to understand than clause 12. On that basis, I suggest that we substitute new clause 4 for clause 12 as appropriate, and I invite the Government to persuade me otherwise.

David Heath: I recall that the Leader of the House had an idea a year or so ago, whereby legislation would be translated into simple English. I do not know what happened to that idea; it was done for one Bill and has now disappeared. My concern in that case was that we ended up with two different versions of the same Bill, which simply gave work for lawyers to determine which wording they felt that they could hang a case on more effectively; so I was not particularly enamoured of that approach. But clarity in legislation is desirable and the hon. and learned Member for Harborough is absolutely right to draw attention to clause 12 as being the antithesis of clarity in drafting. It does not suggest that it is fit for purpose. I am rather impressed by the new clause; it is rather good. I understand it and it seems to cover all the requirements. I will be interested to see where the Minister feels that it is deficient, but my view essentially is clause 12, bad; new clause 4, good.

David Hanson: I do not know how this is recorded in Hansard, but I put my hands up and say that the clause is difficult to comprehend. I accept that it is not in a form of English that is in common parlance in my constituency or, indeed, in the constituencies of other members of the Committee. However, it serves a purpose and with the help of parliamentary counsel it is how we have expressed the intention of the clause.
In simple terms, the provision is as follows: it will ensure that courts have the discretion to set appropriately high tariffs for particularly serious crimes, which will not include the crime of murder, but will include crimes for which an offender could receive a life sentence. It will not include sentences currently given under imprisonment for public protection known as indeterminate sentences but there will be certain types of crime that are allocated a life sentence which are not murder and not IPP.
The effect of clause 12 will mean that in particularly serious cases the judges will not have to take into account the parole arrangements that apply to ordinary sentences when they calculate tariffs. As the hon. and learned Gentleman will know, the law at present obliges them to do so with the result that the final figure is half what a notional equivalent determinate sentence would be. If necessary, the court should be able to disregard the requirements completely or apply some reduction that is less than 50 per cent. as appropriate.
The current law requires working out a notional equivalent sentence and then reducing it, as would be the case with a determinate sentence which in some serious cases can result in what will appear to be, and are, disproportionately short sentences. They will continue to give rise to public discontent about particular sentences by the judiciary unless we examine and support the clause.
Hon. Members may recall the recently highlighted case of Sweeney, to which we referred in our consultation paper, “Making Sentencing Clearer”. Sweeney was sentenced to life imprisonment for the horrendous offences of kidnap and sexual assault of a child under the age of 13. There were serious aggravating factors in that case. Following the calculation on Sweeney’s conviction the tariff amounted to a mere six years for aggravated kidnap and sexual assault of a child under the age of 13. The case had an element of notoriety, certainly in my part of the world in Wales, when it was tried at Cardiff Crown court.
Clause 12 leaves intact the current arrangements for setting tariffs but gives the courts more flexibility to deal with the exceptional serious cases when needed, which I think is the objective of the hon. and learned Gentleman’s new clause. Had the clause been in place when the Sweeney case was heard, the judge would have had discretion to examine it and to raise the tariff accordingly above what would apply in a normal case based on his determination of the aggravating factors in the case.
I accept that the examination of clause 12 is a minefield and I greatly enjoyed the hon. and learned Gentleman’s gentle poking of parliamentary draftsmen and the Government in relation to it. The purpose of the clause is to give effect to the underlying principle, which I have outlined, and it should be supported for that reason.
The hon. and learned Gentleman has put much time and effort into his new clause but it would leave a number of gaps which, on reflection, he would not wish to occur and which would be opposed by members on both sides of the Committee. The new clause has the distinct disadvantage that it is not clear what its results would be. It asks the courts to consider seriousness but it does not specifically ask them to consider early release arrangements nor specifically permit them to disregard that part of the calculation. More importantly, the proposal might be read by courts as meaning that they were entitled to double all current tariffs. I would not wish to see the vast majority of tariffs doubled. We are looking at particular serious and difficult cases. If the new clause were accepted it would have tremendous resource implications as well as raising issues of the appropriateness of the new sentences. It seems to apply to sentences for public protection as well, which are not currently included in clause 12.
I accept that the new clause, as drafted by the hon. and learned Gentleman, may appear to be simpler and clearer for sentencers, but there are severe gaps in it. For example, it removes the role of the Parole Board altogether from the procedures that are currently accepted.

Edward Garnier: No.

David Hanson: My assessment and examination, having taken advice, is that it does. I believe that the hon. and learned Gentleman shares our objective in clause 12, which is to give judicial discretion and to raise the tariff in cases where the seriousness of the case is examined by the judge and an increased tariff is deemed necessary, as in the case of Sweeney. It allows the judiciary to exercise that discretion accordingly and, whatever the minefield of clause 12, I assure the hon. and learned Gentleman that it achieves that objective.

David Heath: Will the Minister put on record the fact that two outrages were associated with the Sweeney case? One was a consequence of the rules that applied and the way in which the judge was required to apply them to the sentence. Secondly, there was the bullying of the judge in print and in the media by people who should know better, including someone who put in place the rules that the judge was required to follow—the previous Home Secretary, the right hon. Member for Airdrie and Shotts (John Reid).

David Hanson: In the space of 30 minutes, we have had a bit of politicking from me and we have now had a bit of politicking from the hon. Gentleman. One of the reasons why we introduced the clause is the natural frustration felt by my right hon. Friend the Member for Airdrie and Shotts (John Reid) when the Sweeney announcement and judgment was given. There is a question about whether Ministers and others should criticise the judiciary’s operations. I do not do so, but I understand people’s frustration. The rules that pertained blatantly led to a lower tariff and sentence from the judge on that day at Cardiff Crown court than any civilised person would expect for the horrendous crimes that were committed. My right hon. Friend expressed his frustrations in his inimitable way. I am trying now, with the support of the Lord Chancellor, to legislate for changes to allow judicial discretion to ensure that the appropriate sentence is given for the seriousness of the crime.

Alun Michael: Frustration was expressed not just about the judicial aspects of the sentence. Intense anger and frustration was felt by people in my constituency who were directly affected by the events that led to the arrest and subsequent imprisonment of the individual concerned. We should remember that it is not just a question of protecting the proprieties of what goes on in court, but of making sure that common sense is applied by the courts when making decisions, and that that common sense is seen to apply. That was not the case on that occasion.

David Hanson: I am grateful to my right hon. Friend. He will know better than other Committee members the impact of the Sweeney case on the community in Cardiff and the reverberations generally. I accept the gentle chiding of the hon. and learned Member for Harborough. The interpretation of clause 12 does take some effort, but its objective is clear. I have checked with parliamentary counsel that it legislates for its objective, which is to allow judicial discretion on serious cases, such as those that I described to the Committee. I commend clause 12 to the Committee, and urge the hon. and learned Gentleman not to press new clause 4.

Edward Garnier: When I argued in favour of new clause 4 and made criticisms of clause 12, I did so to the Minister, not parliamentary counsel. The Minister is elected to the House, and is appointed by the Prime Minister to speak for the Government. There is a great big Chinese wall between me and parliamentary counsel. I do not see him or her and, therefore, nothing that I have said is intended in any way as a rebuke or criticism of that person.

David Hanson: Nor was it taken as such.

Edward Garnier: I am glad that the Minster is taking it on the chin, because he is the person who speaks for the Government.
We all remember the events that followed the Sweeney case, which perhaps as a greater resonance for the right hon. Member for Cardiff, South and Penarth than for others, because the crime, even though it did not take place in his constituency, affected his constituents and because the trial took place in the Cardiff Crown court.
What really annoyed me about the ministerial reaction to the sentencing remarks in the Sweeney case was the fact that the recorder of Cardiff was criticised for doing no more than what the Government required the judge to do. I have looked at the sentencing remarks—I deliberately downloaded them to ensure that I understood what he did. He applied faithfully and to the letter the rubric that the Government required him to apply as a result of their own sentencing legislation. Therefore, it was more than annoying—it was disgraceful—that the then Home Secretary made criticisms, swiftly followed by the Solicitor-General on an edition of “Any Questions” immediately after the sentence was given. It was outrageous that those two Ministers should make personal criticisms of the recorder of Cardiff, who, as I said, was doing no more than what this Government said he should do.
The Minister of State talked about discretion, but the recorder of Cardiff had no discretion and had to do exactly what an Act of Parliament stated. I fully appreciate that clause 12 is designed to prevent such problems from arising again, but that problem was made by the Government, not by the courts and certainly not by the recorder of Cardiff. It cannot be repeated too often that the recorder of Cardiff did precisely what he was required to do by the law, as passed by Parliament and initiated by the Government.
The Minister said that new clause 4 does not mention anything about early release. However, it deals with the minimum tariff that the court must set when sentencing someone to a discretionary life sentence. He said that new clause 4 would double the tariff, but it would do nothing of the sort. It would give the sentencing court the discretion to give an appropriate sentence in light of the facts and circumstances of the case. He claimed that the new clause would take the Parole Board out of the equation, but it would do nothing of the sort because the tariff is the minimum that a person serves, just as the six years handed down by the recorder of Cardiff in the Sweeney case was the minimum that the offender had to serve before he could apply to the Parole Board to be released on license. I have a suspicion, without prejudicing in any way the future decisions of the Parole Board in the Sweeney case, that it will be a very long time beyond the six years before Mr. Sweeney sees the outside of a prison wall.
The Minister kindly said that I must have spent a long time drafting new clause 4, but I can assure him that, having looked at clause 12, it took me about 10 minutes to do so. Perhaps I should have spent 15, 30 or 60 minutes drafting it, but it does not require that amount of time to work out what is wrong with the clause and why new clause 4 would be a marginal improvement.

David Hanson: I hope that the hon. and learned Gentleman will take this in the spirit in which it is meant. By removing subsection (2) of section 82A, his new clause would have the knock-on effect of removing the application of the early release provisions in section 28 of the Crime (Sentences) Act 1997. That section confers an important role on the Parole Board in recommending early release. While that is not set out in the new clause as clearly as I have tried to describe it, the consequences would be different from those which the hon. and learned Gentleman wishes to achieve.

Edward Garnier: I am not sure that that is the Minister’s best point. I do not want to detain the Committee for too long. New clause 4(1) simply repeats his own clause. If my proposal affects the earlier legislation as he suggests, perhaps his does so as well. Let us not fuss too much about that. It is always said that Opposition new clauses and amendments are defective in their drafting. To use the expression that the Minister used a moment ago, I put my hands up. Of course, my drafting is not perfect, but so what? The clause is bad beyond description, although I understand what he is trying to do.
I make a simple plea for the legislation, particularly in the field of criminal justice, that Ministers present to Parliament and to the public and which will eventually be used by judges. Sentencing is the most difficult thing that a judge has to do. There are arguments about the inadmissibility of evidence and whether a particular line of questioning is relevant, but very often they sort themselves out. Sentencing is the most difficult thing that judges and magistrates have to do. It cannot just be read from a template or book that the tariff is four, 10 or six years. It is incredibly difficult. Anything that is designed to make the job of sentencing more difficult is to be deprecated and, I suggest, removed.
Having said that, if the Minister would be good enough to look at new clause 4 and compare it with the clause with his expert and eminent parliamentary counsel, perhaps he can come up with something a little more user-friendly—to use some new Labour jargon—and we would all be happy, as we might get some sentences that do not excite the right hon. Member for Airdrie and Shotts or the Solicitor-General. I am ever hopeful that the Government will listen to something of what I have said, and on that basis I will not seek to press new clause 4.

Question put and agreed to.

Clause 12 ordered to stand part of the Bill.

Clause 13

Consecutive terms of mprisonment

David Hanson: I beg to move amendment No. 175, in clause 13, page 9, leave out lines 39 to 41 and insert—
“(1A) Subsection (1) applies to a court sentencing a person to—
(a) a term of imprisonment for an offence committed before 4 April 2005, or
(b) a term of imprisonment of less than 12 months for an offence committed on or after that date,
as it applies to the imposition of any other term of imprisonment.’.

Frank Cook: With this it will be convenient to discuss Government amendments Nos. 176 and 179 to 181.

David Hanson: The amendments are minor. They close a minor loophole in the provisions on consecutive sentences. The clause was intended to clarify the position on imposing consecutive sentences on different occasions. However, on closer inspection, and bearing in mind the fact that the provisions on sentences of under 12 months in the Criminal Justice Act 2003 have not yet commenced, it is clear that clause 13 does not yet cover the restriction on consecutive sentences in cases where the new sentence is one of less than 12 months imposed for an offence committed on or after 4 April 2005. The amendments will close that minor loophole and I commend them to the Committee.

Amendment agreed to.

Amendment made: No. 176, in clause 13, page 9, line 46, at end insert—
‘(5) Any saving by virtue of which section 84 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (restrictions on consecutive sentences for released prisoners) continues to apply in certain cases (despite the repeal of that section by the Criminal Justice Act 2003) shall cease to have effect.’.—[Mr. Hanson.]

Question proposed, That the clause stand part of the Bill.

Frank Cook: With this it will be convenient to consider new clause 5—Consecutive terms of imprisonment—
‘(1) Section 181 (prison sentences of less than 12 months) of the Criminal Justice Act 2003 (c. 44) is amended as follows.
(2) For subsection (7) substitute—
“(6A) Where a court imposes two or more terms of imprisonment in accordance with this section to be served consecutively, the court shall have complete discretion to set the aggregate length of the terms of imprisonment subject to a maximum of 65 weeks and may suspend all or part of the total period of imprisonment.”.’.

Edward Garnier: The Minister mentioned that the under-12-month provisions in the Criminal Justice Act 2003 are not yet in force. Clause 13(4)(b) refers to intermittent custody orders. As I understand it, such orders—for “weekend prison” in colloquial parlance—have been introduced and used with some success in certain parts of the country. Under pilot schemes, certain Crown court jurisdictions—and possibly magistrates courts as well—have the power to sentence appropriate defendants to a certain number of weeks in prison, breaking up the custodial period into separate periods of non-consecutive days or weeks.
Most obviously, for example, a single father who has committed a sufficiently serious offence to warrant custody could, to ensure that his family is not broken up and that he can continue with his job, be sentenced to serve a term of imprisonment at weekends and carry on Monday to Friday being employed, paying his rent and mortgage and looking after his children. At weekends, care arrangements could be made for his children—they could live with their grandparents, an uncle or aunt or some other suitable person.
As I understand it, weekend prison has been used in Manchester and Luton. It has been used not only for single fathers but for single mothers who have difficulties with employment and child care and whose children might have joined the 150,000 children in this country who have a parent in prison. We know that families break up and that mothers and fathers lose touch with their children; we know that reoffending rates rise when that happens. When contact between the offender and the family is broken, the chances of reoffending increase. Only one visit a year to an offender by a family member correlates noticeably with a reduction in reoffending. Intermittent custody, although it might still be in the Criminal Justice Act 2003, is no longer in use. Unless I have got it wrong and the pilot is being continued in other, discrete areas of the jurisdiction, we need clarification whether intermittent custody is still available for the courts.
New clause 5 deals with the imposition of consecutive sentences up to a maximum of 65 weeks. The English in clause 13 is marginally better, but not much better, than that in clause 12. Clause 13 seeks to limit the total length of consecutive sentences to 65 weeks. New clause 5 would provide greater certainty of discretion. I abide by the Government’s maximum of 65 weeks, but within that I give the court clear discretion, and clearly expressed discretion, to set the appropriate length of sentence. It gives the court the power to suspend all or part of the total period in prison, which goes back to our debate on clause 10.
Often courts give sentences for two or three offences that have to be served at the same time—concurrent sentences. Sometimes if the offences are different in time, for example if they took place in January, March and July the court might think it appropriate for the sentences to follow one after the other, which is called a consecutive sentence. Under this provision, in the limited circumstances of clause 13, the total length of a sentence is 65 weeks, but the court should not be hamstrung by the wording of clause 13 in such a way that it cannot suspend or adjust the length of the total consecutive sentences as it sees fit, having taken account, in essence but not precisely, the factors to which I referred in new clause 4. I hope that is a relatively simple point to grasp, that I have explained it in an understandable way and persuaded the Committee that it is better than the provision in the Bill.

David Hanson: Again, I am grateful to the hon. and learned Gentleman for his amendment. The clause is a technical amendment to correct some anomalies relating to the position on consecutive sentences in the Criminal Justice Act 2003. It amends the 2003 Act in respect of consecutive custody plus and intermittent custody sentences and general restrictions on imposing consecutive sentences for release prisoners.
The policy intention is to underpin custody plus: there need to be two or more sentences imposed consecutively, the resulting total sentence should not be more than 65 weeks and of that 65 weeks a maximum of 26 weeks custodial time should be imposed. The hon. and learned Gentleman is correct in the sense that the Criminal Justice Act 2003 indicated the direction of travel on these matters. We have had the pilots and as he will know custody plus has been deferred. I am not yet able to examine when we can bring the full potential of custody plus on stream but it is still on the statute book and has not been removed; it remains an option for us to consider. However, we must consider the current priorities in respect of Government expenditure and proposals generally.
The deferment of custody plus was announced as part of the White Paper on rebalancing the criminal justice system in July 2006. That is not to say that it will not be introduced at a later date; we are content to consider it and I will continue to keep it under review. However, clause 13 is about consolidating the position based on the anomalies that have occurred as a result of the Criminal Justice Act 2003.
The hon. and learned Gentleman would have us delete clause 13 and replace it with new clause 5 and he has explained the reasons and thinking behind it. I simply say to him that the new clause removes the current restriction on the amount of aggravated sentence that can be delegated to custody, namely, 26 weeks. I am not entirely clear whether that is the hon. and learned Gentleman’s intention, because in real terms it will mean that custody could be applied up to the present 65-week threshold, which could mean a sentence of 65 weeks in prison if sufficient offences were being sentenced together.
The purpose of custody plus and the 2003 legislation is to strike a balance between custody and licence, to allow intermittent sentences and the general restrictions that we have already discussed and to give courts the discretion, which the hon. and learned Gentleman welcomed, and the potential to help people to manage a sentence and life outside prison at the same time. We are continually keeping that under review. We need to examine it in light of our resource pressures and, as he will know, the pressures on the Prison Service are intense at the moment.
The purpose of clause 13 is to bring the 2003 Act into line with the changes under the Bill. I urge the hon. and learned Gentleman to reflect on what I said and to consider whether he intends his new clause to be such as to extend the potential for custody up to the maximum of 65 weeks. I do not think that, on reflection, he would be seeking that so I commend the original clause to the Committee and ask him not to press the new clause to a Division.

Edward Garnier: I always reflect on what the Minister says and, sometimes, I reflect it back at him. Today is not one of those occasions, but I was interested in his saying that the purpose of clause 13 is to bring the balance inherent within custody plus into play. Well, custody plus is not in play, so there is no balance to be struck. Intermittent custody—a different concept—has been put in abeyance. We all understand the resource difficulties, but I urge the Government not only when dealing with the Bill, but when looking at the history of criminal justice legislation since 1997 not to rush for headline solutions, but to think more carefully about the implications of what flows from that legislation.
Let us consider schedule 23. It contains pages and pages of amendments to legislation that is barely two or three years old and some of it obviously deals with much older legislation. The amount of legislation that the Government have amended before it has even come into force, let alone after it has come into force, and the amount of legislation that the Government have not brought into force—custody plus being one example—is enormous. It is an incompetent, inefficient and confusing way in which to run a criminal justice system.
I shall not press the new clause to a Division nor shall I resist clause 13 stand part. I urge the Government not to get themselves into such muddles because it spreads confusion elsewhere.

Question put and agreed to.

Clause 13, as amended, ordered to stand part of the Bill.

Clause 14 ordered to stand part of the Bill.

Clause 15

Application of section 35(1) of the criminal justice Act 1991 to prisoners liable to removal from the UK

Edward Garnier: I beg to move amendment No. 12, in clause 15, page 10, line 25, at end add—
‘(2A) For the avoidance of doubt there is a rebuttable presumption that any such prisoner will be removed from the United Kingdom following his release without prejudice to any existing rights not to be, or protections from being, removed under British or European Union law.’.

Frank Cook: With this it will be convenient to discuss the following amendments: No. 87, in clause 19, page 14, line 38, at end add—
‘(10) For the avoidance of doubt there is a rebuttable presumption that any prisoner of a category referred to in section 46ZA will be removed from the United Kingdom following his release without prejudice to any existing rights not to be, or protections from being, removed under British or European Union law.’.
No. 88, in clause 20, page 15, line 38, at end add—
‘(9) For the avoidance of doubt there is a rebuttable presumption that any prisoner of a category referred to in section 259A will be removed from the United Kingdom following his release without prejudice to any existing rights not to be, or protections from being, removed under British or European Union law.’.

Edward Garnier: Subject to minor differences, the wording of amendment No. 12 is pretty well the same as the wording of amendments Nos. 87 and 88. The principle behind the amendments is the same. Amendment No. 12 would affect clause 15, while amendments No. 87 and 88 would affect clauses 19 and 20. However, I wish to concentrate on how amendment No. 12 touches on clause 15. It sets out a proposed new subsection (2A), which states:
“For the avoidance of doubt there is a rebuttable presumption that any such prisoner will be removed from the United Kingdom following his release without prejudice to any existing rights not to be, or protections from being, removed under British or European Union law.”
I am happy for “United Kingdom” to be inserted in place of “British”, if that is thought to be more appropriate in statute law.
Clause 15 deals with the potential for the removal of prisoners from the United Kingdom. It brings into play provisions in relation to the early release of prisoners and so forth.
Of the 81,547 people inside prison as of last Friday, there are approximately 12,000 foreign nationals, some of whom are EU citizens. During Prime Minister’s questions three or four weeks ago, the Prime Minister, when questioned on the matter, said that there were quite large numbers of Jamaicans, Nigerians and other foreign nationals in prisons in England and Wales. The Committee is probably in agreement that many of those people ought to be living in their own country, either in prison or not, but not at our expense.
By removing a number of foreign national prisoners who have served at least a part of their sentence in this country, we would free up a number of valuable prison spaces. The prison population is bigger than the space available inside the prisons to house them by about 250 people. Modernisation of the prison estate means that there is now sanitation inside the cell. An unintended consequence of overcrowding is the ridiculous set-up whereby cells designed for one person now have two men, sometimes three, sleeping in a space that is also used as a lavatory. There is no privacy or dignity. If one of the cell’s occupants wishes to use the lavatory, he must do so in front of the others.
I have been to some prisons where prisoners rig up a string and make a curtain using a sheet or a towel, although there are obviously difficulties in allowing prisoners to have string in their cells, as the suicide rate in overcrowded prisons is enormous. There were about 57 suicides by the mid-point of this year, although the figure may be higher. However, the number of suicides in our prisons is gross and something of which we should be ashamed. If we want to ease overcrowding, one answer is to ensure that an appropriate number of foreign national prisoners is removed quickly from our prisons once they have served their sentences.
Amendment No. 12 was tabled to act as a spur to the Government to do something about the matter. Our knowledge of the European Union legal system has shown that expelling EU citizens to their country of origin is not an apt way to prevent these people from coming back into the country, because the free movement directive and other regulations allow them to return. Some European Union prisoners have been here so long, or were here so long before they were found guilty of a crime, that under EU law or the European convention on human rights, they can claim a long-term connection with this place that prevents them from being deported. That is not necessarily the case with nationals of countries outside the European Union.
The short point—and I apologise for getting to the church by way of the moon—is that our prisons are woefully overcrowded. The Government could relieve some of that overcrowding if they pulled their socks up and started to negotiate, implementing bilateral treaties with non-EU countries to ensure that a proportion of the foreign national prisoners in our prison estate is sent home. More urgently, foreign national prisoners who are released but remain in this country as illegal immigrants or are here unlawfully should not simply be released back onto our streets. They should be taken directly from the prison and deported. There is no excuse for having such people pushed out into our streets, where they remain unlawfully and undetected.
Bullwood Hall in Essex and Canterbury prison in Kent are two prisons dedicated exclusively to housing foreign nationals who have not yet completed their sentence and—the Minister will correct me if I am wrong—foreign nationals who have completed their sentence but who have been detained pending deportation. Either way, something is wrong with the system if it cannot ensure the removal of a foreign national who would be deemed to remain in Britain unlawfully but for the fact that he has been detained. The presence of such people is not conducive to the public good, and in the right cases and in the right numbers we should relieve prison overcrowding by doing something along the lines suggested by the amendment.

David Heath: I simply wish to add a few comments. We undoubtedly have a problem with foreign prisoners who should have been deported, but that is more of an administrative problem than a legal one. I am not convinced that there is a gaping loophole in the present statutory provisions, but I am utterly convinced that there is a huge administrative loophole, which I hope will be addressed, given the inability of the Prison Service and the immigration authorities to work closely together to ensure that proper measures are taken to label prisoners due for imminent release so that they know where there is a recommendation for deportation, and can effect that removal on release. That should not be the most difficult thing in the world.
I found myself defending the Minister of State on the question of prisons used for foreign prisoners, which I regard as a positive move. If one can congregate those prisoners in one place, it is administratively easier to effect their removal. That is an entirely proper and sensible thing to do, and I do not have a problem with it. However, there are some countries with which we have a substantial problem, including Jamaica, and I think that the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston (Maria Eagle) travelled to Kingston to discuss it.

Maria Eagle: No, I did not.

David Heath: In that case I am misinformed, I apologise.

Maria Eagle: I am willing to go.

David Heath: They are all willing to go. I have never been to Jamaica, but I am not convinced that Kingston is one of the most salubrious places in the world, although perhaps that is unfair. We have a problem with Jamaica, and I ran into it when I was involved with policing in Avon and Somerset. There was a large turnover of Jamaican drug runners—youths—coming into Bristol airport. On virtually every aeroplane from Kingston, Jamaica that touched down there was a significant number of people who were arrested because they were found to be carrying drugs. That significant problem resulted in an increase of Jamaican nationals in our prison population. Other countries are similarly involved in the drugs trade.
It makes sense for some of those prisoners to be returned to custody or given an appropriate sentence in their state of origin. Often, these people are not the Messrs. Big of the drug world. They are poorly advised to carry a limited amount of drugs on to a plane and get off at the other end, only to find themselves arrested and put in prison in this country. Of course, they should not do such things, and they should be deterred, but nevertheless the real villains of the piece are the people who pay them to act as carriers. If there are ways of reducing that population, we should adopt them.
I do not, however, accept that we should deliberately set out to remove as many foreign prisoners as possible from our jails—particularly if they end up in a non-secure jail in another country or if we are not convinced that they would not reoffend. In countries with which we have bilateral agreements, we must be careful to ensure that we do not create further work down the line for police and customs officers. I am not convinced that the statute contains a lacuna. I am convinced, however, that, as is often true of matters that were the provenance of the Home Office and which partly still are, and whether or not the Department of Justice needs to work in conjunction with the Home Office, there is a huge problem in the management and organisation of the administrative process. The Government have not yet put that right, and they need to do better in future.

Philip Hollobone: I very much support any measures that are intended to return foreign national prisoners to their country of origin, either towards the end of their sentence under present arrangements or preferably towards the beginning, provided that they are returned to secure detention. I am sure that my hon. and learned Friend the Member for Harborough is better informed than me, but I tabled a parliamentary question on the subject not long ago, and my understanding is that there are 8,000 foreign national prisoners in our jails, which is about 10 per cent. of the British prison population. That is an absolute scandal.
There ought to be scope for genuine international agreement, perhaps co-ordinated by the United Nations, on where prisoners should serve their time. A reciprocal part of that arrangement would be a requirement that we take in British nationals jailed abroad. From memory, I think that the number of such people is about 1,500—a lot less than the number of foreign nationals here.

David Hanson: It is 4,500.

Philip Hollobone: In any event, there are few issues that incense people more than British taxpayers’ money being spent on accommodating foreign national prisoners in our jails. The issue of EU nationals should not be passed over either. The Italians recently came to some sort of arrangement on Romanian nationals convicted of offences on Italian soil, and found a way of returning those people to their country of origin.
Given that one of the principles of the European Union is freedom of movement, I do not see why that should not apply to convicted prisoners. I support the amendment tabled by my hon. and learned Friend the Member for Harborough, and I am glad that the Committee is addressing the genuine and growing concern in the country that we are far too generous to foreign nationals in our jails. People get very cross when they are told, “We would deport them but we have to get their consent.” We should have appropriate international agreements so that, whether the prisoner consents to being deported or not, we do not spend taxpayers’ money on detaining prisoners here if they can be detained in their own country.

David Hanson: I am grateful for hon. Members’ contributions. This is an important issue, given the concern about foreign national prisoners in jails in my jurisdiction of England and Wales. I hope that I can reassure all hon. Members that foreign national prisoners are in jail because they have been caught, tried and convicted of crimes and are therefore serving a sentence. There are approximately 11,000 such prisoners in British jails, which is about 14 per cent. of the total. As has been mentioned, certain countries represent a significant proportion of those figures.

Philip Hollobone: I am fascinated by the Minister’s answer. He gave a figure of 11,000, and I am grateful for that clarification. Perhaps his officials could advise him how that figure has changed in the past few years, because it seems to have increased significantly.

David Hanson: Although I do not have the figures on performance, I am happy to reflect on that matter and will, if the hon. Gentleman will allow me, drop him a letter on those points.
As I was indicating, there are significant areas of difficulty regarding that figure of 11,000. I draw the Committee’s attention to the points that were mentioned by the hon. Member for Somerton and Frome. As of 31 August 2007, there were just over 1,300 Jamaican prisoners in British jails, just over 1,000 Nigerian prisoners, 449 prisoners from Vietnam—a significant number—369 from Somalia and 371 from China.
Perhaps I can offer the hon. Gentleman and the Committee some reassurance. An important key point is that, as of 23 October 2007, we have agreements with 97 countries to repatriate prisoners to serve sentences in their home country. The countries range from Albania and Australia, in the a’s, through to Venezuela and Ukraine at the other end of the alphabet. Those countries and they have operational transfer agreements in place.

Philip Hollobone: Is it the case that those repatriation agreements require the consent of the prisoner concerned? The Minister says that there are 1,300 Jamaican nationals in British jails. Surely the British Government should have been making an agreement with Jamaica for the mass deportation of those people to a suitable detention facility in Jamaica. I would be surprised if it were not cheaper to pay the Jamaicans to hold those people in their own jails than to house them in this country.

David Hanson: Again, perhaps the hon. Gentleman will bear with me. We have a facilitated return scheme, under which we are encouraging individuals to return to their home countries. We are also helping with transfer costs. We recently discussed the matter with the Jamaican Government and decided on an agreement at official level, which awaits ratification by the Jamaican Parliament, in respect of the transfer of such people.
We are negotiating prisoner transfer arrangements with the major countries, some of which I mentioned earlier. They include Nigeria, Vietnam, Laos, China, Ghana, Libya, Botswana and Russia, which are the main areas for which we need prisoner transfer agreements at official and ministerial levels. This afternoon, I am meeting the South African Minister of Correctional Services and I will be raising with him again the need for an agreement with South Africa.

Charles Walker: What arguments will lawyers use to prevent those transfers? It is all very well having a deal with Libya, but I am sure that some slick lawyer will argue that such a transfer might impinge on his client’s human rights or something. Even with these agreements, is it likely that prisoners will be deported to their country of origin?

David Hanson: Let me put the success of the transfer agreements and work in context. Two years ago, approximately 1,500 people were transferred by the Government out of prisons in England and Wales to foreign prisons. Last year, 2,784 prisoners were transferred out. In the current year we are on target to meet my right hon. Friend the Prime Minister’s aim of removing 4,000 prisoners from prisons in England and Wales. I accept that there is more to be done, which is why I am investing ministerial time in trying to secure agreements with the countries that I have mentioned, and why I will be trying to raise that issue this afternoon with my South African counterpart. There will be engagements across the board to ensure that that is done, because it needs to occur. However, the speed of transfer to date has been significant.
Hon. Members mentioned the two prisons that we have allocated entirely to foreign prisoners—Bullwood and Canterbury—to ensure that we transfer out prisoners at the end of their sentences much more efficiently and speedily. Border and Immigration Agency staff are working in those prisons with the Prison Service to effect a speedy transfer either to a final destination, or to a holding camp in the BIA estate. I welcome the support of the hon. Member for Somerton and Frome for that measure.

David Heath: The Minister will have my support for that measure, although the mind boggles as to why we did not have a proper relationship between the immigration and prison authorities years ago.
I would like to return to what the Minister was saying because it is important that the Committee does not get the wrong impression about the agreement with the Jamaican Government. Is not the scale of that agreement extremely modest, simply because there are not enough prison facilities in Kingston to deal with the sort of numbers of prisoners that we have in the British prison estate?

David Hanson: The agreement has the potential for expansion. We are trying to secure agreements with countries with which we do not have agreements at present. Any agreement, such as the one negotiated in August with Jamaica, must be welcomed.
Some of these issues are not as easy as they might at first seem. There will be people in each of our constituencies with Jamaican citizenship who may have lived in the United Kingdom for 20 or 30 years, who may have married British citizens and who may have children who are British citizens, but who are Jamaican passport holders. The situation is not always as simple or clear as some of the “let’s deport” arguments suggest.
 Mr. Hurd rose—
 Mr. Walker rose—

David Hanson: I will give way to the hon. Member for Ruislip-Northwood first because he has not had a go yet.

Nick Hurd: I think that we all understand some of the difficulties underlying the headlines, but the stark reality is that 14 per cent. of an overcrowded prison population are foreign nationals who, frankly, have relinquished their right to our hospitality. All our constituents would expect the Government to be extraordinarily robust in shifting those people on.
I would like to press the Minister to answer the question put to him by my hon. Friend the Member for Kettering. Do these international agreements still rely on the underlying agreement of the individual prisoner? If they do, are the Government happy with that status quo?

David Hanson: No, they do not. This is a complex area and it is difficult to discuss individual cases, but those agreements do not automatically rely on the consent of the prisoner. There are people who have been deported and have not consented to that deportation. Obviously, in the European Union context, that is very difficult, because in that context a prisoner can be deported to Krakow tomorrow, walk across the airport and fly back to the UK under their European rights—rights to which they are perfectly entitled to. So, the situation is difficult, but the intention is to speed up the deportations, to effect prisoner transfer agreements, especially with countries outside the European Union, and to ensure that we put in place measures to increase the number of deportations.

Charles Walker: The Minister is right that this is a complex area. Regarding the 11,000 foreign nationals in our prisons, in how many cases has the Home Office been able to establish whether those people had previous criminal records in their country of origin—in other words that they are serial offenders who have a criminal record in their country of origin and have then come over to this country and offended here?

David Hanson: I am grateful for the question, but I am not in a position to answer it now. If the hon. Gentleman will let me, I will consider the question. Given that this matter is also the responsibility of the Home Office and that I am a Minister in the Ministry of Justice, I do not have those figures to hand, but I will ensure that we look at the issue again.

Philip Hollobone: May I try to assist the Minister—if I am thinking along the right lines—in answering the question put by my hon. Friend the Member for Ruislip-Northwood? Is it not the case that consent is not required from a prisoner for them to be deported on completion of their sentence, but is required for deportation during their sentence?

David Hanson: No. The situation, essentially, is that a number of strands of consent are required. The bilateral agreements that I have mentioned—there are 97 in total—require the consent of the prisoner. So, with the 97 countries that I have listed, an element of consent is required. Under the EU framework decision, which we have already agreed at an EU level and which comes into effect in 2009 or 2010, consent will not be required. Also, under domestic legislation, we do not require consent, and where there is no bilateral agreement, we can deport individuals without their consent, and we have done so.
The reason why the figure has risen from 1,500 to 4,000 over the past two years is because my right hon. Friend the Prime Minister, the Minister for Borders and Immigration, and other Ministers dealing with these matters, including me, have all recognised that we need to improve the performance of the BIA estate on deportation and to free up people from prison into the secure BIA estate ready for deportation. The purpose of Bullwood and Canterbury was to achieve those things.
Clause 15 is designed simply to give the Parole Board the power to determine parole for all prisoners serving sentences of less than 15 years, regardless of their immigration status. It is designed to address the decision in the case of Hindawi, about which hon. Members might be aware, which provided that applications for the early release of foreign national prisoners serving between four and 15 years who are liable to deportation or removal from the United Kingdom can be determined only by the Secretary of State. That procedure was incompatible with article 5(4) of the European convention on human rights, and clause 15 is designed to make us compatible with that convention.
Clauses 19 and 20 are designed to make certain changes to the operation of the early removal scheme. At the moment, the Secretary of State is empowered to remove from the country, up to 135 days before the halfway point of a sentence, fixed term prisoners serving a sentence of three months or more, but not life, who are liable for deportation or removal from the United Kingdom. The purpose of the three clauses is, first, to extend the scheme to make it available to offenders not liable for deportation; secondly, to streamline the existing scheme by removing a number of restrictions on eligibility; and, thirdly, to remove a potential anomaly in the treatment of prisoners released under the Criminal Justice Acts 1991 and 2003.
I wish to draw the Committee’s attention to the fact that in pursuing the aims that I have outlined, clause 20 inadvertently makes a change that I do not support and that we want to rectify on Report. It would remove the existing provision requiring prisoners who are entitled to be released under the provisions of the 2003 Act to serve at least one quarter of their sentence before they can be removed early under the scheme. We have reflected on the unintended consequence that that creates a disparity. I will table an amendment on Report to reinstate the requirement, and I hope that right hon. and hon. Members will bear with me on that point.
In conclusion, I commend the clauses to the Committee and I urge it to reject the amendments tabled by the hon. and learned Member for Harborough. We are already doing a considerable amount, and are trying to do even more to effect the changes that I think are sought by all Committee members to ensure that the 11,000 prisoners either serve their sentences abroad under repatriation terms, or are at least deported at the end of their sentence.

Edward Garnier: We have had an interesting discussion about the impact of foreign national prisoners on the English and Welsh prison estate. It is important that the Government make their position clear. Obviously, we must consider the situation involving some foreign nationals. For example, a person could be deported back to China after serving a relatively short length of time in custody for a relatively minor offence. Such people could get into considerable difficulty on their return to China because the Chinese are not noted for accepting back, let alone treating kindly, criminals of their own nation.
That being said, I think that I am right that since the Government came to office, the foreign national prison population has gone up by 155 per cent.—three times that of the British prisoner population—which gives rise to all sorts of questions about language facilities and the need for interpreters in prisons and courts. The bill for interpreters in London courts now runs into millions a year. I have no idea what that bill is in the Prison Service, but it must be quite significant.
I do not know the Government’s thinking about this at the moment, but they were proposing to give EU nationals £1,500 to go away. Of course, those EU nationals would take the money, go back to France, Italy or Greece, and return under the free-right-to-travel arrangements.
This is a convenient moment to unburden the Committee by letting them know that I do not wish to press my amendments to a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 ordered to stand part of the Bill.

It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Four o’clock.